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Atlanta v. Merritt - 172 Ga. App. 470


Infants under 14 years of age assume the risk of those patent, obvious, and known dangers which they are able to appreciate and avoid. Although whether assumption of risk on the part of a child bars recovery is peculiarly a question for the jury, if the facts are so plain and palpable that they demand a finding by the court as a matter of law, the trial court may make that determination on summary adjudication without the intervention of a jury. 


Plaintiff Merritt filed a lawsuit in Georgia state court against defendants City of Atlanta ("City") and Fulton County Recreation Authority seeking to recover damages Merritt suffered when he was struck in the face by a foul ball during a baseball game he attended at Atlanta-Fulton County Stadium, a sports facility operated by the City. Merritt was 8 years old at the time of his injury. Merritt's theory of recovery was that the design and maintenance of the facility was negligently defective because the area from which he was watching the game—a picnic area adjacent to the right field foul line—was not adequately screened from the playing field. The trial court denied the City's motion for summary judgment, and the City sought review. The City claimed that it was entitled to summary judgment because Merritt assumed the risk of the injury and because his parents' negligence in bringing him to a place of danger was the sole proximate cause of the injuries. 


Was the City entitled to summary judgment?




The appellate court affirmed the lower court's order. The court rejected the City's claim that spectators at baseball games were presumed to be aware of the attendant dangers, and that Merritt assumed the risk of injury as a matter of law. The court found that there was no evidence regarding Merritt's ability to appreciate the risk or his actual understanding of the risk. The court also found factual disputes regarding Merritt's claim that he was injured by the design defect of the stadium. The court also held that the disputed claims regarding the allegedly defective design precluded summary judgment on the City's claim that the sole proximate cause of Merritt's injuries was his parents' negligence. Thus, the court held that the City had not met its burden of showing its entitlement to summary judgment by producing evidence that affirmatively showed that Merritt could not recover.

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